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***************************************************** Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matters of )
)
Implementation of the Local Competition ) CC Docket No. 96-98
Provisions of the Telecommunications Act )
of 1996 )
)
Petition of Southwestern Bell Telephone Company, ) NSD File No. 98-121
Pacific Bell, and Nevada Bell for Expedited )
Declaratory Ruling on Interstate IntraLATA Toll )
Dialing Parity or, in the Alternative, Various Other )
Relief )
ORDER
Adopted: March 19, 1999 Released: March 23, 1999
By the Commission: Commissioner Furchtgott-Roth issuing a statement.
I. INTRODUCTION
1. On January 25, 1999, the United States Supreme Court, in AT&T v. Iowa Utilities
Board, reversed, in part, the rulings of the United States Court of Appeals for the Eighth Circuit that
had vacated certain rules that this Commission had adopted pursuant to the Communications Act of
1934 (the Act), as amended by the Telecommunications Act of 1996 (1996 Act), and held, inter
alia, that the FCC has general jurisdiction to implement the 1996 Act's local competition provisions.
In light of this decision, and for the reasons indicated below, we take the following actions today.
First, pursuant to section 1.3 of our rules, we extend the deadline of February 8, 1999, for full
implementation of intraLATA toll dialing parity, and grant a limited waiver of the rules establishing
a schedule for Commission review of intraLATA toll dialing parity plans where a state commission
has not acted on a local exchange carrier (LEC) application to implement intraLATA toll dialing
parity. We take this action to allow state commissions adequate time to review and act upon LEC
intraLATA toll dialing parity plans. Second, we deny as moot the Petition for Expedited Declaratory
Ruling on Interstate IntraLATA Toll Dialing Parity Or, in the Alternative, Various Other Relief filed
by Southwestern Bell Telephone Company, Pacific Bell, and Nevada Bell (SBC) on September 18,
1998.
II. DISCUSSION
A. Waiver of Dialing Parity Implementation Schedule.
2. On August 8, 1996, the Commission adopted and released the Local Competition
Second Report and Order, which, in part, promulgated rules and policies to implement the dialing
parity requirement of section 251(b)(3) of the Act. In order to facilitate the orderly implementation
of toll dialing parity, and to take full advantage of state experience and expertise, the Commission's
rules require, among other things, that each LEC, including Bell Operating Companies (BOCs),
submit a plan to the state regulatory commission for each state in which it provides telephone
exchange service, setting forth the LEC's plan for implementing intraLATA toll dialing parity. The
state, in turn, would administer the implementation of intraLATA toll dialing parity by the LEC. In
the event that a state elected not to evaluate a LEC's dialing parity plan sufficiently in advance of the
date on which a LEC is required by the Commission's rules to implement toll dialing parity, we
required the LEC to file its plan with this Commission. All LECs, including BOCs, were required
to implement toll dialing parity by February 8, 1999.
3. On August 22, 1997, the United States Court of Appeals for the Eighth Circuit
vacated the Commission's dialing parity rules that pertained to intrastate, but not interstate,
telecommunications traffic, holding that such rules exceeded the Commission's jurisdiction. In its
January 25, 1999 decision, the United States Supreme Court reversed the Eighth Circuit, holding that
the Commission has jurisdiction over intrastate intraLATA toll dialing parity, and subsequently
reinstated the Commission's intraLATA toll dialing parity rules, including the February 8, 1999
deadline.
4. Given that the February 8 date has come and gone, a strict enforcement of the deadline
now that our rules are reinstated would not allow state commissions adequate time to have reviewed
still-pending dialing parity plans by the deadline, and would cause LECs that have yet either to file
or implement intraLATA toll dialing parity plans to be in violation of the Commission's deadline upon
the date of reinstatement of our rules. We believe that it would serve no proconsumer or
procompetitive purpose to impose a deadline that would prevent state commissions from reviewing
and approving such plans, as originally contemplated in our rules, and that good cause exists to
extend that deadline where necessary. Thus, on our own motion, we grant a limited waiver of the
rule establishing a deadline for full implementation of intraLATA toll dialing parity and the rules
establishing a schedule for Commission review of intraLATA toll dialing parity plans.
5. We note, furthermore, that in the SBC proceeding, we have gathered an extensive
public record on the importance of requiring timely implementation of intraLATA toll dialing parity.
We agree with numerous commenters that expeditious implementation of intraLATA toll dialing
parity is in the public interest.
6. We believe that only a small minority of states will require this limited waiver.
According to the record, most states have either implemented intrastate intraLATA toll dialing parity,
or planned to do so by February 8, 1999. In approximately eleven states intraLATA toll dialing
parity is either not yet implemented, or is at some stage of administrative or judicial review. We
believe that these states must be allowed sufficient time to review and approve intraLATA toll dialing
parity plans within a reasonable, and enforceable, federal deadline. Our extension of the February
8, 1999 deadline and our limited waiver of the Commission's toll dialing parity implementation
schedule sets forth the outside parameter for implementation of intraLATA toll dialing parity. We
emphasize that the reinstatement of our jurisdiction over intraLATA toll dialing parity does not
deprive state commissions of the authority to require LECs to comply with an earlier deadline for the
implementation of intraLATA dialing parity. We encourage state commissions to do so where they
deem appropriate, particularly where a plan is close to approval.
7. Accordingly, pursuant to section 1.3 of our rules, we waive the section 51.211(a)
February 8, 1999 deadline for the implementation of intraLATA toll dialing parity and the section
51.213 schedule for the implementation of intraLATA toll dialing parity as follows:
No later than May 7, 1999, all LECs must implement intraLATA toll dialing parity
plans already filed and approved by the state regulatory commission for each state in which the LECs
provide telephone exchange service. LECs must implement such intraLATA toll dialing parity plans
by May 7, 1999, whether or not the state regulatory commission has ordered implementation of the
approved plan, and notwithstanding any date subsequent to May 7, 1999, that may have been ordered
by the state commission.
No later than April 22, 1999, all LECs must file intraLATA toll dialing parity plans
with the state regulatory commission for each state in which the LEC provides telephone exchange
service if a plan has not yet been filed with such state commissions. Once a state commission has
approved a plan, the LEC must implement its plan no later than 30 days after the date on which the
plan is approved. Any plan that provides for the implementation of intraLATA dialing parity by a
date subsequent to 30 days after approval by the state commission will be deemed in violation of
Commission rules.
On June 22, 1999, if a state commission has not yet acted on a LEC's intraLATA toll
dialing parity implementation plan, the LEC must file that plan with the Common Carrier Bureau
(Bureau). By June 23, 1999, the Bureau will release a public notice initiating a comment cycle for
the Bureau's consideration of any LEC plan filed with the Bureau. A state commission may continue
to act on a plan until the Bureau has acted upon that plan. A LEC's failure to file a plan with the state
commission or this Commission in the manner required by this order will be deemed a violation of
this Commission's rules that will allow interested parties to seek relief pursuant to section 401(b) of
the Act.
On July 21, 1999, any unopposed plan will be deemed approved unless the Bureau
notifies the LEC that the plan will not be deemed approved. All LECs whose plans are approved in
this manner will implement their plans no later than 30 days after the date on which the plan is
approved.
No later than August 5, 1999, the Bureau will act upon any opposed plan and, as
necessary, any unopposed plans that were not deemed approved.
On August 6, 1999, any unopposed plan on which the Bureau or a state has not acted
will be deemed approved.
All LECs whose plans are approved or deemed approved under this compressed
schedule must implement their plans no later than 30 days after the date on which the plan is approved
or deemed approved.
B. SBC Petition For Declaratory Ruling
8. On September 18, 1998, SBC filed a Petition with the Commission that requested a
declaratory ruling that, in light of the Eighth Circuit decision vacating the intrastate portion of the
Commission's intraLATA toll dialing parity rules, there is no current obligation to implement
interstate intraLATA toll dialing parity for interstate intraLATA toll calls on February 8, 1999. In
the alternative, SBC sought a waiver of the interstate intraLATA toll dialing parity rules to coincide
with the date on which SBC implements intrastate intraLATA toll dialing parity in its respective
states. The SBC Petition is premised on the Eighth Circuit's ruling that the Act does not grant the
Commission jurisdiction over intrastate dialing parity, and thus is moot in light of the Supreme Court's
decision. SBC has conceded that its networks are prepared to provide full 2-PIC interstate and
intrastate intraLATA presubscription. We therefore deny SBC's petition and expect it to implement
intraLATA toll dialing parity in accordance with this order.
III. CONCLUSION
9. Because the timing of the Supreme Court's decision reversing the Eighth Circuit's
vacation of the Commission's intraLATA toll dialing parity rules would prevent some states from
reviewing and approving intraLATA toll dialing parity plans prior to the Commission's deadline and
would cause some LECs to be in violation of those rules once they are reinstated, good cause exists
to warrant a limited waiver of Commission's rules. Thus, on our own motion, we adopt a limited
waiver of the Commission's February 8, 1999 deadline for the implementation of intraLATA toll
dialing parity and prescribe a compressed schedule for state commissions or this Commission to
approve, and LECs to implement, intraLATA toll dialing parity. We also deny SBC's request for
declaratory ruling and waiver as moot in light of the Supreme Court decision.
IV. ORDERING CLAUSE
10. Accordingly, IT IS ORDERED that, pursuant to section 1.3 of the Commission rules,
47 C.F.R. 1.3, a limited waiver of sections 51.211(a) and 51.213 of the Commission's intraLATA
toll dialing parity implementation rules, 47 C.F.R. 51.211(a), 51.213, IS GRANTED in the manner
indicated in paragraph 7, supra.
11. IT IS FURTHER ORDERED that, pursuant to section 251(b)(3) of the
Communications Act of 1934, as amended by the Telecommunications Act of 1996, 47 U.S.C.
251(b)(3), and pursuant to section 1.3 of the Commission's rules, 47 C.F.R. 1.3, that the
Southwestern Bell Telephone Company, Pacific Bell, and Nevada Bell Petition for Expedited
Declaratory Ruling on Interstate IntraLATA Toll Dialing Parity Or, in the Alternative, Various Other
Relief IS DENIED as moot.
12. IT IS FURTHER ORDERED, pursuant to 47 C.F.R. section 1.103(a) of the
Commission's rules, 47 C.F.R. 1.103(b), that the decisions adopted herein SHALL BE EFFECTIVE
immediately.
FEDERAL COMMUNICATIONS COMMISSION
Magalie Roman Salas
Secretary
STATEMENT OF
COMMISSIONER HAROLD FURCHTGOTT-ROTH
Re: In the Matters of: Implementation of the local Competition provisions of the
Telecommunications Act of 1996; Petition of Southwestern Bell Telephone Company,
Pacific Bell and Nevada Bell for Expedited Declaratory Ruling on Interstate IntraLATA
Toll Dialing Parity or, in the Alternative, Various Other Relief; (CC Docket No. 96-98,
NSD File No. 98-121).
I support today's Order establishing a new implementation schedule for intraLATA toll
dialing parity, but write separately to express my concern with two related issues. First, while I
support the general time-frames outlined in today's order, I acknowledge that there are some
parties that have asked for an opportunity to discuss the specific circumstances faced in individual
states that might warrant some deviation. While I do not know whether or not the details of their
situations would warrant such relief, I prefer to provide parties with such an opportunity where
possible. In this case, however, the extremely tight implementation schedule precludes a
meaningful opportunity even to request such a waiver. As such, I would have favored allowing
an individual State to file such a waiver petition, with the Commission tolling the time limitations
while it considers the merits of that petition.
In addition, I note that some of my concerns in this area could have been alleviated if the
Commission had merely sought some general comments immediately after the Supreme Court
issued its opinion. The Commission should have issued a Public Notice promptly after the
Supreme Court issued its opinion on January 25, 1999, simply asking for any and all comments on
how the Court's opinion should impact all Commission policies. Such a Public Notice would have
provided any party with an appropriate procedural vehicle for expressing their concerns with the
re-instatement of some and the invalidation of other Commission rules. Unfortunately, that is not
the path the Commission chose. I fear, however, that the Commission may be falling behind in its
effort to address even the issues specifically remanded to us as it has now been almost two
months since the court issued its opinion.
* * *